Delhi High Court
Mrs Kanti Singh & Ors. vs Lords Mark Industries Pvt. Ltd & Anr. on 27 February, 2024
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: January 08, 2024
Judgment pronounced on: February 27, 2024
+ CM(M) 1455/2023, CM APPL. 46265/2023 (stay)
MRS KANTI SINGH & ORS. ..... Petitioners
Through: Mr. Rajnish Ranjan and Mr.
Shivansh Srivastava, Advs.
versus
LORDS MARK INDUSTRIES PVT. LTD & ANR.
..... Respondents
Through: Mr. Shafiq Khan and Mr. Tariq
Muneer, Advs.
CORAM:
HON'BLE MS. JUSTICE SHALINDER KAUR
JUDGMENT
1. The petitioners in the petition filed under Article 227 of the
Constitution of India have approached this Court impugning the order dated
01.08.2023 passed by the Learned District Judge, Commercial Court-01,
Patiala House Courts, New Delhi (hereinafter referred to as "Trial Court") in
the case "Mrs. Kanti Singh & Ors vs. M/s Lord Marks Industries Pvt. Ltd"
being CS(COMM) No. 99/2022 whereby the learned Trial Court returned
the plaint under Order VII Rule 10 of the Civil Procedure Code, 1908
(hereinafter referred to as "CPC").
2. The relevant facts for the disposal of the present case are that the
petitioners herein are the joint owners of the suit property bearing No.14E,
14th Floor, Hansalaya Building, 15 Barakhamba Road, New Delhi 110001.
The subject premises measures 930 sq. ft.
3. That on 13.06.2019, by way of a registered lease deed, the
respondents took the said suit premises on rent. A sum of Rs.1,58,100 was
consequently decided as the monthly rental amount, exclusive of
taxes/levies and maintenance charges. The duration of the said lease deed
was for a period of 3 years, commencing on 20.05.2019 and ending on
19.05.2022. The lease also stipulated a lock-in period of 2 years from the
day of commencement to 19.05.2021. As per the Lease Deed, the lessee was
required to pay the rent on the 7th day of every month along with payment
for the consumption of gas, electricity and water, as and when these
payments became due as per intimation received from the concerned
department. A copy of the same was to be provided to the lessor at the end
of every quarter. Maintenance charges were to be paid directly to
"Hansalaya Properties" on the 7th day of every month and a copy of the
same was to be furnished to the lessor. An interest free security deposit
equivalent to four (04) months‟ rent i.e. Rs 6,32,400.00 was to be paid by
the respondents to the petitioners. The same was completed vide RTGS
transfers to the Petitioners. This amount was to be refunded at the expiry of
the Lease after any adjustments/deductions for any dues owed by the
respondents.
4. The respondents defaulted in payment of electricity charges, hence the
petitioners herein were forced to pay a sum of Rs.67,584/ towards electricity
charges up to the period of August 2019. Further, the respondents were not
regular with the payment of monthly rent and defaulted in the payment of
the same during the period of September 2019 to November 2019. Despite
repeated reminders, the respondents failed to pay the arrears and have failed
to pay the rent from November 2019.
5. On 02.01.2020, the respondents vide an email, stated that they will be
vacating the suit premises on 01.02.2020. The petitioners on 07.01.2020,
terminated the lease deed vide a legal notice dated the 07.01.2020. However,
the respondent did not vacate the suit premises, nor did they clear the arrears
due for the lock-in period.
6. Subsequently, on 12.02.2020, the petitioners filed a suit for
possession, arrears of rent and mesne profits which came to be tried by
Additional District and Sessions Judge-04, Patiala House Courts, Delhi
(hereinafter referred as „ADJ‟). An injunction order in the same suit was
passed on 31.03.2020, whereby the respondents were restrained from
subletting the suit premises or creating any third-party interests therein. In
the meanwhile, the case was referred to mediation, which failed.
7. On 03.12.2020, the respondents herein filed an application under
Order VII Rule 10 and 10A CPC along with his written statement whereby
he contended that since the suit premises was taken up for commercial
purposes, only a commercial court would have jurisdiction over the said
matter. Vide order dated 05.04.2021, on joint request, the learned ADJ
transferred the matter to the learned Principal District and Sessions Judge,
Patiala House Courts. On 28.04.2021, the learned Principal District and
Sessions Judge assigned the matter to learned District Judge, Commercial
Court, Patiala House Courts, Delhi.
8. On 07.08.2021, the petitioners filed an application under Order VI
Rule 17 of the CPC, seeking amendment to its petition so as to comply with
the provisions of the Commercial Courts Act, 2015 (hereinafter referred to
as "C.C. Act"). The respondents herein, on 04.09.2021, filed an application
under Order VII Rule 11 of the CPC stating that there has been no
compliance of Section 12A of the Act. The respondents further went on to
state that amount claimed by the petitioners in the suit herein is
Rs.1,11,651/- and therefore in view of the Gazette Notification dated
07.07.2018, the Learned Trial Court does not have jurisdiction over the
matter as this commercial dispute is of a value lower than Rs.3,00,000/-.
9. On 13.12.2021, the respondents filed their reply to the Order VI Rule
17 application of the petitioners and on 04.12.2021, the respondents
preferred an application under Order VII Rule 10 and 10A of the CPC with
the prayer for rejection of the plaint in view of the fact that it is in
contravention of Section 12 and 12A of the Act and that the value of the said
suit is to be computed on the basis of market value of the immovable
property which is more than Rs. 12 Crores. Vide order dated 13.12.2021, the
above stated application of the respondents was dismissed.
10. The respondents went on to challenge the order dated 13.12.2021 by
way of a Civil Revision Petition being C.R.P No.20/2022, which was
disposed of vide order dated 08.04.2022.
11. The respondents also filed a petition under Article 227 of the
Constitution of India being C.M.(M) N0.190/2022 on 28.02.2022,
challenging the order which directed that the case be transferred to the
commercial court. The same was withdrawn stating that the impugned order
had not been correctly placed and there were disparities in the petition. The
respondents also withdrew the revision petition (C.R.P No.20/2022) on
08.04.2022, wherein the order stated that the respondents had remained non-
committal in the payment of dues. Yet, another petition (C.M.(M) No.
418/2022) was filed on behalf of the respondents, challenging the order
dated 01.07.2021 transferring the case to the Commercial Court. The same
was disposed of vide order dated 05.05.2022 observing that prayer in
petition is misconceived as there was no such order on record.
12. Thereafter, the amendment application filed by the petitioners was
allowed and amended plaint was taken on record vide order dated
03.08.2022 and the respondent was directed to file his amended written
statement within 30 days. However, the respondent filed his Written
statement on 21.12.2022 i.e. after an expiry of 120 days. The petitioners
accordingly moved an application under Order VIII Rule 10 of the CPC and
the previous application moved Order XVA of the CPC was pending for
disposal. During the course of arguments on the pending applications, the
Learned Trial Court suo moto took an objection on the legality of the orders
dated 05.04.2021 and 28.04.2021 in view of the judgment in the case of
Virendra Kumar vs Rekha Bhayana [2022 SCC OnLine Del 2678] and
reviewed the orders dated 05.04.2021 and 28.04.2021 and passed the
impugned order dated 01.08.2023 returning the plaint to be presented before
the appropriate Court.
13. According to the petitioners, the impugned order dated 01.08.2023
raises a question of formative importance with respect to exercise of
jurisdiction by learned Trial Court which are as below:-
"a) Whether a Civil Court has inherent power and jurisdiction to
review its own order after 2 years, on the basis of a subsequent
judgment of Superior Court even which was passed after more
than 1 year of the order which has been reviewed?
b) Whether the power of review can only be exercised on an
application by a litigant and only if the circumstances specified
in Rule 1 of Order 47 exist?
c) Whether the Ld. Trial Court failed to appreciate that
Explanation 1 Order 47 embodies "Doctrine of Finality' i.e.
interest reipublicae ut sit finis litium" and it prohibits review or
reversal or modification of an order in view of subsequent
decision of a Superior Court in any other case?"
Submissions by the Petitioners:
14. Mr. Rajnish Ranjan, learned counsel appearing in support of the
petition assailed the order dated 01.08.2023 asserting that it is manifest that
the learned Trial Court has exercised the jurisdiction not vested in it. The
Trial Court has erred by reviewing an earlier order on the basis of a
subsequent order passed by a Superior Court which is impermissible under
law.
15. It was submitted that the explanation to Order XLVII CPC is based on
the doctrine of prospective overruling and does not have a retrospective
effect. Thus, when a decision is made in a particular case, it will have its
operation in future. The mere reviewing of the order / judgment by taking
judicial notice of a subsequent judgment will dilute the binding effect of the
decision on interse parties as reopening of a concluded judgment / order will
have far reaching adverse effect on the administration of justice. The
petitioners places reliance on the judgment of the Hon‟ble Supreme Court in
the case titled as "Shanti Devi Vs. State of Haryana and Ors"(1999) 5
SCC 703.
16. It is further submitted on the basis of "Kumaran Vaidyar & Ors vs
K.S. Venkiteswaran & Ors" MANU/KE/0007/1992, that a Civil Court
does not suo moto have the power to review an order. Thus, having no
inherent power to review its order that too after a period of two years, the
interim order if not set aside, will have great ramification on the rights of the
parties. The petitioners also contended that the impugned order is not
sustainable as a review can only be exercised by a litigant on an application
moved by him on basis of circumstances specified as Order XLVII Rule 1
that embodies the "Doctrine of Finality". The learned Trial Court could
examine the maintainability of the suit as on date of passing the impugned
order and not as it stood two years after.
17. It is also submitted that the learned Trial Court failed to consider that
the respondent had previously filed two petitions challenging the transfer
order passed by learned District & Sessions Judge, but withdrew the same.
Thus the impugned order has attained finality. Therefore, the impugned
order cannot be challenged at this stage. Reliance placed on Municipal
Corporation of Delhi vs Sunni Majlis Aukaf &Ors
[MANU/DE/0072/1968].
Submission by the Respondent:
18. Responding to the aforesaid submissions, Mr. Shafiq Khan learned
counsel for the respondent submits that as per Clause 25 of the Lease Deed,
the suit premises was let out to the respondent for office purposes, which is
squarely covered under section 2(1)(c) of the Commercial Courts Act.
Therefore, the procedure and protocol to be followed in commercial suits is
applicable to the present case which is different from non-commercial suits.
The CPC or any other statue is not vested with the power to transfer a
commercial suit from the general civil court to a commercial court. The
process in transferring the suit to a commercial court is non-est. Any such
transfer imputed on either of the parties bears no consequence. Thus, vide
impugned order, the aforesaid defect has been corrected by returning the
plaint. Reliance placed on the case of Virendra Kumar vs Rekha
Bhayana [2022 SCC OnLine Del 2678]. Further reliance was placed on
Sanjay Aggarwal &Anr vs Hemant Sharma [CM(M) 749/2022] & Shri
Sali Sales vs Shri Shyam Collection [CM(M) 693/2022].
19. This Court has given anxious consideration to the contentions of the
learned counsels and also perused the record as well as the impugned order.
20. The petitioners have questioned the correctness of the view as
expressed in the terms of the impugned order observing that the present suit
being commercial in nature, the plaint is to be returned to the plaintiff under
Order VII Rule 10 CPC, if the suit is filed as a non commercial suit, to be
instituted afresh according to law. The petitioner further questioned that
whether the learned Trial Court is justified in suo moto reviewing the
previous orders dated 05.04.2021 and 28.04.2021 vide which, the suit was
transferred to commercial court instead of returning the plaint.
Analysis and Findings
21. Before considering the rival submissions of the parties, it is necessary
to reproduce the provision of Section 15 of Commercial Courts Act, 2015
which is as under:-
"15. Transfer of pending cases.
(1) All suits and applications, including applications under the
Arbitration and Conciliation Act, 1996 (26 of 1996), relating to
a commercial dispute of a Specified Value pending in a High
Court where a Commercial Division has been constituted, shall
be transferred to the Commercial Division.
(2) All suits and applications, including applications under the
Arbitration and Conciliation Act, 1996 (26 of 1996), relating to
a commercial dispute of a Specified Value pending in any civil
court in any district or area in respect of which a Commercial
Court has been constituted, shall be transferred to such
Commercial Court: Provided that no suit or application where
the final judgment has been reserved by the Court prior to the
constitution of the Commercial Division or the Commercial
Court shall be transferred either under sub-section (1) or sub-
section (2).
(3) Where any suit or application, including an application
under the Arbitration and Conciliation Act, 1996 (26 of 1996),
relating to a commercial dispute of Specified Value shall stand
transferred to the Commercial Division or Commercial Court
under sub-section (1) or sub-section (2), the provisions of this
Act shall apply to those procedures that were not complete at
the time of transfer.
(4) The Commercial Division or Commercial Court, as the case
may be, may hold case management hearings in respect of such
transferred suit or application in order to prescribe new
timelines or issue such further directions as may be necessary
for a speedy and efficacious disposal of such suit or application
in accordance 3 [with Order XV-A] of the Code of Civil
Procedure, 1908 (5 of 1908):
Provided that the proviso to sub-rule (1) of Rule 1 of Order V
of the Code of Civil Procedure, 1908 (5 of 1908) shall not
apply to such transferred suit or application and the court may,
in its discretion, prescribe a new time period within which the
written statement shall be filed.
(5) In the event that such suit or application is not transferred in
the manner specified in sub-section (1), sub-section (2) or sub-
section (3), the Commercial Appellate Division of the High
Court may, on the application of any of the parties to the suit,
withdraw such suit or application from the court before which it
is pending and transfer the same for trial or disposal to the
Commercial Division or Commercial Court, as the case may
be, having territorial jurisdiction over such suit, and such order
of transfer shall be final and binding."
22. Section 16 of the Act provides for amendments to the provisions of
the CPC in their application to commercial disputes and is reproduced as
under:-
"Section 16: Amendments to the Code of Civil Procedure,
1908 in its application to commercial disputes.
16. (1) The provisions of the Code of Civil Procedure, 1908 (5
of 1908) shall, in their application to any suit in respect of a
commercial dispute of a Specified Value, stand amended in
the manner as specified in the Schedule.
(2) The Commercial Division and Commercial Court shall
follow the provisions of the Code of Civil Procedure, 1908 (5
of 1908), as amended by this Act, in the trial of a suit in
respect of a commercial dispute of a Specified Value.
(3) Where any provision of any Rule of the jurisdictional High
Court or any amendment to the Code of Civil Procedure, 1908
(5 of 1908), by the State Government is in conflict with the
provisions of the Code of Civil Procedure, 1908 (5 of 1908),
as amended by this Act, the provisions of the Code of Civil
Procedure as amended by this Act shall prevail."
23. Section 18 of the Act empowers the High Court(s) to issue directions
in the form of notification and practice directions to supplement the
provisions of Chapter II of the C.C. Act and the CPC with respect to the
hearing of a commercial dispute of a specified value.
24. A plain reading of the aforesaid provisions provides for transfer of the
pending cases relating to commercial disputes to the Commercial Courts,
however, the overall administrative control with respect to implementation
of above provisions remains vested with the High Court(s).
25. It is relevant to refer to the case of Virendra Kumar vs Rekha
Bhayana (supra) wherein the learned Single Judge of this Court considered
the issue regarding return of plaint under Order VII Rule 10 CPC relating to
a commercial suit instituted as an ordinary suit and held as under:-
"14. Commercial Courts are different from non-Commercial
Courts. If a commercial suit is instituted before a Civil Court,
it is, clearly, instituted before a Court other than the Court
before which it should have been instituted. Order VII Rule 10
(1), in such circumstances, directly comes into play and
requires the suit to be returned to the plaintiff to be instituted
before the appropriate Court, i.e., the Commercial Court.
17. "It is trite that, where an action is required to be performed
Vin a particular manner, it has to be performed in that: manner
alone and all; other modes of performing the action ipso facto
stand foreclosed".
18.Ambalal Sarabhai Enterprises Ltd. MANU/SC/1378/2019:
(2020) 15 SCC 585, in my view, cannot be distinguished
merely on the ground that the said case involved an insurance
in which a non-commercial suit had been filed before the
Commercial Court. The principle that, in such a case, the
plaint is required to be returned to the plaintiff to be re-
presented before a competent forum, in my view, would apply
equally, where a commercial suit is instituted before a Civil
Court."
26. Further in two subsequent cases reported as Sanjay Aggarwal &Anr
vs Hemant Sharma (supra) and Shri Sali Sales vs Shri Shyam Collection
(supra), it is observed as under:-
"Following the judgment of the Supreme Court in Ambalal
Sarabhai Enterprises Limited v. K.S. Infraspace LLP 1, I have
already taken a view in more than one case that, „if a
commercial suit is filed on the non-commercial side, the court
has necessarily to return the plaint for being filed as a
commercial suit being filed as a commercial suit."
27. It is further relevant to refer to the case of Narender Kumar vs. M/s
Om Daily Needs Retailing Pvt. Ltd. & Anr.; FAO (Comm) 92/2023
whereby the learned Division Bench of this court considered the similar
issue of returning the plaint of a suit which, though originally filed before
the Court of learned ADJ was transferred by learned Principal District and
Sessions Judge to a commercial court. The learned Division Bench upheld
the order returning the plant rather than transferring the suit to District
Judge, Commercial Court.
28. The Hon‟ble Supreme Court in Ambalal Sarabhai Enterprises Ltd.
[(2020) 15 SCC 585], upheld the recourse to Order VII Rule 10 of the CPC
directing return of the plaint.
29. In sum and substance, the aforesaid judgments highlight the principle
of law that once a suit though instituted as non-commercial suit is found to
be of commercial in nature, the plaint must be returned in exercise of power
under Order VII Rule 10 CPC. Also, on return of the plaint, the plaintiff
may, after making necessary corrections in the pleadings, present the plaint
before the court of competent jurisdiction.
30. In due consideration of the above laid principles of law and reverting
back to the present case, it transpires that on 05.04.2021, learned ADJ-04
sent the matter to learned Principal District and Sessions Judge for
transferring it to commercial courts on an objection being taken as ordinary
civil courts‟ jurisdiction was barred by C.C. Act. Subsequent to transfer of
the case to District Judge (Commercial Court)-01, Patiala House Court, New
Delhi, an application under Order VII Rule 10 and 10A CPC came to be
moved seeking rejection of the plaint in view of it being in contravention of
Section 12 and Section 12A of the Commercial Courts Act, 2015 which was
dismissed on 13.12.2021. The District Judge (Commercial Court)
specifically found that there was no contravention of the mandatory
provision of Section 12A of the Act as in the present case urgent interim
relief was prayed and granted by the learned ADJ-04 on 12.02.2020. The
observation of the learned District Judge (Commercial) are as follows:-
"...I have no hesitation to conclude the though initially suit was
not tagged as commercial suit and was filed as an ordinary suit,
still urgent interim relief was prayed in the matter and from that
criteria also, section 12A of Commercial Courts Act was not
applicable at that stage."
31. The respondents challenged the order dated 13.12.2021 by way of a
Civil Revision Petition which was disposed of vide order dated 08.04.2022.
Subsequent thereto a CM(M) petition filed on 28.02.2022 impugning the
same order was withdrawn by respondents. Even, another CM(M) petition
bearing No. 418/2022 challenging order dated 01.07.2021 transferring the
case to commercial court was disposed of. Thus, the order dated 01.07.2021
transferring the suit to commercial court and order dated 13.12.2021
dismissing the application under Order VII Rule 10 and 10A CPC remained
unchallenged.
32. It is to be noted that petitioners filed an application under Order VI
Rule 17 CPC seeking amendments to its petition so as to comply with the
provisions of Commercial Courts Act which was allowed by learned Trial
Court on 03.08.2022 and amended plaint along with list of dates and events,
brief synopsis, statement of truth and amended list of documents, with the
documents, were taken on record. The said findings are also unchallenged,
thus, the non-commercial suit filed by the petitioners confirmed to all the
essential protocol prescribed under Commercial Courts Act for instituting a
commercial suit.
33. Thereafter, the learned District Judge, Commercial Court -01, suo
moto took an objection on the legality of the orders dated 05.04.2021 and
28.04.2021 in view of a subsequent judgment of Virendra Kumar vs
Rekha Bhayana (supra) and returned the plaint under Order VII Rule 10
Code of Civil Procedure, 1908 to be presented before a Court of competent
jurisdiction.
34. Prior to venturing to decide the issue as to whether the learned
District Judge (Commercial Court), in the peculiar facts of the present case
is justified to suo moto review the previous orders and return the plaint to be
instituted afresh before Commercial Court, it is important to note down the
provision of Order XLVII Rule 1 CPC, which reads as under:-
"Application for review of judgment.
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but
from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or
evidence which, after the exercise of due diligence was not
within his knowledge or could not be produced by him at the
time when the decree was passed or order made, or on account
of some mistake or error apparent on the face of the record of
for any other sufficient reason, desires to obtain a review of
the decree passed or order made against him, may apply for a
review of judgment to the Court which passed the decree or
made the order.
(2) A party who is not appealing from a decree or order may
apply for a review of judgment notwithstanding the pendency
of an appeal by some other party except where the ground of
such appeal is common to the applicant and the appellant, or
when, being respondent, he can present to the Appellate Court
the case on which he applies for the review.
Explanation.--The fact that the decision on a question of law
on which the judgment of the Court is based has been reversed
or modified by the subsequent decision of a superior Court in
any other case, shall not be a ground for the review of such
judgment."
35. The issue concerning review jurisdiction came up before the Hon‟ble
Supreme Court in case of S. Murali Sundaram vs. Jothibai Kannan &
Ors. [2023 SCC OnLine SC 185]. The Hon‟ble Supreme Court held as
under:-
"15. While considering the aforesaid issue two decisions of this
Court on Order 47 Rule 1 read with Section 114 CPC are
required to be referred to? In the case of Perry Kansagra
(supra) this Court has observed that while exercising the review
jurisdiction in an application under Order 47 Rule 1 read with
Section 114 CPC, the Review Court does not sit in appeal over
its own order. It is observed that a rehearing of the matter is
impermissible in law. It is further observed that review is not
appeal in disguise. It is observed that power of review can be
exercised for correction of a mistake but not to substitute a
view. Such powers can be exercised within the limits of the
statute dealing with the exercise of power. It is further observed
that it is wholly unjustified and exhibits a tendency to rewrite a
judgment by which the controversy has been finally decided.
After considering catena of decisions on exercise of review
powers and principles relating to exercise of review jurisdiction
under Order 47 Rule 1 CPC this Court had summed upon as
under:
"(i) Review proceedings are not by way of appeal and
have to be strictly confined to the scope and ambit of
Order 47 Rule 1 CPC.
(ii) Power of review may be exercised when some
mistake or error apparent on the fact of record is found.
But error on the face of record must be such an error
which must strike one on mere looking at the record and
would not require any long-drawn process of reasoning
on the points where there may conceivably by two
opinions.
(iii) Power of review may not be exercised on the ground
that the decision was erroneous on merits.
(iv) Power of review can also be exercised for any
sufficient reason which is wide enough to include a
misconception of fact or law by a court or even an
advocate.
(v) An application for review may be necessitated by
way of invoking the doctrine actus curiae neminem
gravabit."
16. It is further observed in the said decision that an error
which is required to be detected by a process of reasoning can
hardly be said to be an error on the face of the record.
17. In the case of Shanti Conductors (P) Ltd. (supra), it is
observed and held that scope of review under Order 47 Rule 1
CPC read with Section 114 CPC is limited and under the guise
of review, the petitioner cannot be permitted to reagitate and
reargue questions which have already been addressed and
decided. It is further observed that an error which is not self-
evident and has to be detected by a process of reasoning, can
hardly be said to be an error apparent on the face of record
justifying the court to exercise its power of review under Order
47 Rule 1 CPC."
36. In case of Shanti Devi Vs. State of Haryana and Ors (supra), it was
observed:-
"2. However, we have gone through the review petition and the
grounds urged therein. The contention that the judgment sought
to be reviewed was overruled in another case subsequently is
no ground for reviewing the said decision. Explanation to Order
XL VII Rule 1 of the CPC clearly rules out such type of review
proceedings."
37. Thus, it is evidently recognised that review jurisdiction is limited in
the sense that by observing the review power, a mistake can be corrected but
it cannot be used to substitute a view. Moreover, review jurisdiction cannot
be exercised to rewrite a judgment, the issue in relation to which has been
finally decided as the Review Court does not sit in appeal over its own
order.
38. Order VII Rule 10 CPC mandates return of plaint for approaching the
competent court. The law provides that if the court where the suit is
instituted, is of the view that it has no jurisdiction, the plaint is to be returned
in view of the provisions of Order VII Rule 10 CPC and the plaintiff can
present it before the court having competent jurisdiction. It is no more res
integra, that a court of District Judge, Commercial Court is a court of
competent jurisdiction for holding trial of a commercial suit.
39. Pertinently, the present suit is being tried by the Court of competent
jurisdiction i.e., District Judge, Commercial Court. Moreover by following
the amendment procedure, the non-commerical suit of the plaintiff has been
amended and is now a commercial suit as per the provisions of the
Commercial Courts Act and thereby confirms to the protocol and procedure
of a commercial suit. Moreso, the impleadment of Section 12A of the
Commercial Courts Act has also been removed as is apparent from the order
dated 13.12.2021 passed by the learned District Judge, Commercial Court.
The learned Trial Court has adopted a hyper technical view by suo moto
reviewing the orders dated 05.04.2021 and 28.04.2021 and passing the
impugned order on the basis of the judgment titled as Virendra Kumar vs
Rekha Bhayana (supra) which was passed subsequent to the passing of the
aforesaid transfer orders.
40. In view of the above, at this stage the return of the plaint under Order
VII Rule 10 CPC will not serve any purpose rather it will be an excessively
technical approach and will defeat the ends of justice. Needless to say, in
case the parties have not approached the Mediation Centre for peaceful
settlement of their disputes, opportunity may be afforded by the learned
Trial Court to the parties.
41. Accordingly, the impugned order dated 01.08.2023 is set aside.
Learned Trial Court is directed to proceed with the trial of the commercial
suit, as per law.
42. Consequently, the present petition along with pending application
stands allowed.
SHALINDER KAUR, J.
FEBRUARY 27, 2024
SU
